Nirmal Kumar Sutradhar vs Amal Kumar Biswas
2022 Latest Caselaw 7386 Cal

07.11.2022
 SL No.40
 Court No.8
    (gc)
                             SA 87 of 2020

                      Nirmal Kumar Sutradhar
                                Vs.
                 Amal Kumar Biswas, since deceased,
                  Represented by Lila Biswas & Ors.




                    The appellant is not represented even in the second

              call, nor any accommodation is prayed for on behalf of the

              appellant. The appellant was also not represented on the

              earlier occasion.   In view of our earlier order dated 29th

              September, 2022, we proposed to decide the admission of

              the second appeal on the basis of the available records.

                    The appeal is arising out of a decree of affirmation

              of the judgment and decree dated 21st Mach, 2006 and

              29th March, 2006.       The appellate decree is dated 21st

              January, 2011.      The plaintiff filed a suit for recovery of

              possession and eviction of the respondents.        It appears

from the pleadings and evidence that the right, title and

interest and possession of the plaintiff was acknowledged

and determined in T.S. No.17 of 1991. The plaintiff

claimed that he was dispossessed from 14th March, 1999

by the defendant. From the certified copy of the judgment

and decree marked as Exhibits-12 and 12/A, it can be

ascertained that the Trial Court in the earlier suit had

determined the right, title and interest and possession of

the plaintiff in respect of the suit property. The defendant

contended that the suit was decreed ex parte against the

present defendant and the plaintiff in connivance with the

elder brother of the defendant No.1, namely Amal Kumar

Sutradhar obtained fraudulently an ex parte decree.

However, no attempt was made by the defendant No.1 to

set aside the said ex parte decree. The said decree was

passed on merits and no evidence could be produced to

show that the said decree was not binding on the opposite

parties or that the decree was fraudulently obtained. It is

also significant to mention that the T.S. No.17 of 1991

was not only against Mr. Amal Kumar Sutradhar but

against all the defendants which include the present the

defendant. The present defendant is not contesting the

said proceeding. Accordingly, at this stage the said

defendant could not contend that the said decree was

fraudulently obtained. In view of the fact that the right,

title and interest of the plaintiff is clearly established at

the trial. The concurrent findings of facts are not to be

interefered with in this second appeal.

Accordingly, the second appeal being SA 87 of 2020

stands dismissed at the admission stage.

However, there shall be no order as to costs.

(Uday Kumar, J.)                          (Soumen Sen, J.)